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ANALYSIS OF AUGUST 26, 2008 CAV OPINION

[Posted August 26, 2008] We get one published opinion from the Court of Appeals today, a criminal law ruling that will be of considerable comfort to a whole lot of police officers. It’s a search and seizure case called Jones v. Commonwealth.

In the balancing act between prosecutorial interests and the rights of citizens to be free from unreasonable searches and seizures, it matters what rights are being considered. If the question is simply “How do we get these crooks off the street?” then the courts often cast their lot with the defense. But when the question becomes “How do we protect the lives and safety of police officers?” the calculus changes. Court will always be sympathetic to legitimate police perceptions of danger, and every jurist would be happy if the words officer down faded from our vocabulary.

That’s been true all the way back to the grand-daddy of the investigative stop cases, Terry v. Ohio, 392 US 1 (1968). In that case, the Supreme Court wrote that “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Virginia appellate opinions have echoed that policy statement, including this line from Landsdown v. Commonwealth, 226 Va. 204 (1983): “The law does not expect a police officer must gamble on turning away from a possible danger and chance taking a bullet in the back.”

Against this backdrop, the Court of Appeals takes up Jones’s claim that police officers unreasonably seized him and searched a black bag that contained drugs. Some time before midnight one night in 2006, Jones drove his car up to a motel near I-95 and parked there. But he didn’t get out; he just sat there, looking down into his lap for about 15 minutes. No one approached the car, but a couple of narcotics detectives were watching form a short distance away.

At this point, there’s nothing inherently suspicious; if you would ask my teenage daughter what she though he was doing, she’d venture, “He’s texting his friends, of course.” Still, the detectives knew that this motel was a frequent transfer point for drug transactions, given its proximity to the Interstate. They decided to go over and ask Jones what he was doing.

Question 1: Can they do that? According to well-established precedent, yes, they can. There is nothing unconstitutional about an officer’s initiating contact and asking questions; in such a circumstance, the suspect is free to ignore the officer, slap on a pair of I-Pod headphones, or simply walk away. But Jones did none of these things. Instead he reached down into the darkened interior of the car, between his feet.

(Memo to crooks: Never, ever (1) lie to your lawyer, (2) tell off your trial judge, or (3) reach into a darkened area during an encounter with the police.)

The detective told Jones to keep his hands in sight, and he initially complied. But evidently Jones didn’t get the memo recited above, because he reached down again. The detective told him, “Don’t reach for the floorboard. If you reach for the floorboard, I’m going to assume you have a gun.” Alas, this warning did no good at all; Jones reached down a third time, and the officer backed up, drawing his gun. Jones then raised his hand, holding a small black bag.

Matters only got more problematic when the other detective, standing by the passenger side of the car, noticed a Bowie knife in the back seat, within Jones’s easy reach. One of the detectives orders Jones out of the car, and eventually he does that, tossing the black bag onto the seat.

Were you expecting gunshots there? Well, I’ll spoil the suspense by telling you that no shots are fired during this exchange. But that wasn’t the way the detective envisioned things; he genuinely feared for his life, and told the trial judge so. It turned out the bag didn’t contain a gun at all; just the following perfectly innocent contents: a digital scale, plus cocaine and marijuana. You know; routine stuff.

The issue in this case is whether the police improperly seized Jones, and whether they were justified in looking into the bag after Jones tossed it aside. The first question gets the Terry stop treatment, and the court concludes today that the officers acted within the scope of their discretion. Remember where we started this discussion, with the courts’ deference to issues of officer safety? That consideration trumps Jones’s claim that the police had no right to seize him (which occurred when he stepped out of the car). Personally, I think that if he had simply declined the detectives’ initial requests, then they couldn’t have touched him; there is nothing illegal about sitting in a car in a motel parking lot. But by escalating the officer-safety situation, Jones enabled the detectives to take reasonable steps to ensure their own safety. Just like it says in Terry.

Today’s ruling is a methodical, instructive walk through this area of Fourth Amendment jurisprudence. The court affirms Jones’s convictions by holding that the officers did not improperly seize him and (by an entirely separate analysis) did not unreasonably search the bag.